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Taylor v The Scottish Ministers [2004] ScotCS 232 (27 October 2004)

OUTER HOUSE, COURT OF SESSION

XA27/03

OPINION OF LORD BRACADALE

in the appeal

to the Court of Session under section 239 of the Town and Country Planning (Scotland) Act 1997

DERRICK TAYLOR

Appellant:

against

THE SCOTTISH MINISTERS

Respondents:

________________

Appellant: Sutherland; Gray Muirhead

Respondent: Mure; R Henderson

27 October 2004

Introduction
[1] This is an appeal under section 239 of the Town and Country Planning (Scotland) Act 1997. The proceedings were remitted to the Lord Ordinary in terms of Rule of Court 41.44. Both the appellant and the respondents were represented by counsel at the hearing. I was advised that no appearance had been entered by the relevant planning authority, Clackmannanshire Council ("the planning authority").

[2] The appellant made an application under section 42 of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act") for variation of a condition attaching to an existing planning permission, accompanied by the appropriate fee. The planning authority refused to accept the application for determination and took the view that what was proposed was properly to be treated as a development within the meaning of section 26 of the 1997 Act requiring further planning permission under section 28 of the 1997 Act. The question with which the appeal is concerned is whether the planning authority was entitled to deal with the application in this way. Accordingly, the appeal did not relate to the merits of the application for variation of a condition but rather the preliminary question as to whether the planning authority ought to have accepted the application for determination. Parties were agreed that if the appeal were to succeed, I should allow the appeal and return the matter to the planning authority to receive and determine the application on its merits.

Relevant statutory provisions
[3] Section 26 of the 1997 Act provides:

"Subject to the following provisions of this section, in this Act, except where the context otherwise requires, "development" means the carrying out of building, engineering, mining, or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land."

Section 28(1) provides:

" Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land."

Section 42 provides:

"(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.

(2) On such an application the planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and -

if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly;
if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application."

Article 12(3) of the General Development Procedure (Scotland) Order 1992 ("the 1992 Order) provides:

"An application under any of articles 3 to 6 of this order shall not be entertained unless it is accompanied by any fee payable under the Fees Regulations."

History of development
[4] The appeal relates to an area of land ("the site") near the town of Alva. In 1991 a Mr Sharp, who was the proprietor of the site, made a planning application for change of use to a trout fishery. The present use at the time was described as "duck ponds" and the application was for change of use to a trout fishery and to excavate and remove soils off site and infill with clay and heavy demolition materials. The latter operation to excavate and infill did not relate to the fish ponds.

[5] Planning permission C/91/039 was granted on 15 May 1991 ("the 1991 permission") (production 7/4). Subsequently, Mr Sharp sold the trout fishery to the appellant. Although the planning permission extended to four ponds, only two, Fish Ponds 1 and 2, were constructed. Ponds 3 and 4 were never developed. The appeal is concerned with Fish Pond No 1. Condition 11 of the 1991 planning permission is in the following terms:

"In the event of the use as a fishery being discontinued from Pond Numbers 1, 3 and 4 identified on the approved layout plan and the water drained off, the site shall be reinstated by the infilling of soil only to the levels adjoining the immediate site boundaries and the land shall be reinstated and grass seeded to after agricultural use to the satisfaction of the District Council."

Under Condition 10, Pond No. 2 was to be treated differently from other ponds. Condition 10 is in the following terms:

"In the event of the use as a fishery being discontinued from Pond No. 2 identified on the approved layout plan and the water drained off, it shall only be infilled within the terms of any current temporary planning permission under reference C/86/127 otherwise a further application for any alternative development should be submitted to the District Council.

C/86/127 was a planning permission granted in 1986 ("the 1986 planning permission"). It is produced as part of production 7/5.

[6] In due course the appellant decided to close the trout fishery. After giving notice to the planning authority as required by Condition 12, he started work with a view to complying with Condition 11. As a first step he began excavation of silt from Pond No 1. The silt was stored on site with a view to using it as top soil once the pond had been filled in. The excavation was carried out in the course of 2001. On 22 January 2002 the planning authority served an enforcement notice on the appellant preventing him from continuing with the excavation. The appellant appealed against the enforcement notice and a public local enquiry was held. The Reporter issued his decision on 15 October 2002 ("the 2002 decision") (Production 6/2). He concluded that the works to which the notice related, namely, the excavation of silt, could reasonably be taken to be an incidental part of the infilling operation sanctioned by Condition 11. The Reporter took the view that the question of whether soil from outside the appeal site could be used to infill was not directly relevant to the appeal since the appellant had not at that stage commenced infilling. In addition, he concluded that the question as to whether the proposal to vary the 1991 planning permission in order to allow infill with inert materials required a fresh application was not relevant to that appeal.

[7] The appellant wished to infill using inert waste material in addition to soil, rather than soil alone. According to Mr Sutherland, who appeared on behalf of the appellant, this was because the material would be easier to get and consequently the operation would be completed more quickly. Further, infilling with harder material would mean that there would not be the same problems with settlement and therefore less material would be required.

[8] Accordingly, the appellant made an application to the planning authority under section 42 of the 1997 Act for a variation of Condition 11 to permit infilling of Pond 1 with inert material in addition to soil. This application, dated 23 March 2002, sought "Variation to terms of Condition 11 of planning consent C/91/039 to allow infill with general inert material in accordance with SEPA exception licence dated 5/03/01". It was accompanied with the fee appropriate to such an application, £105. By letter dated 26 March 2002 (Production 7/3) the planning authority advised the appellant that the proposal could not be regarded as a variation of a condition. The planning authority advised that they had provisionally amended the application to an application for a development in the following terms: "Infill of former fishery pond with inert waste material, and restoration of land to agriculture". In addition, the planning authority intimated that the fee for the application would be calculated at £105 for each 0.1 of a hectare. It was indicated that the fee would increased to £110 on 1 April 2002. The appellant appealed against that decision. The Reporter issued his decision letter on 3 February 2003 ("the 2003 decision") (Production 6/1). The Reporter dismissed the appeal and the appellant has appealed to this Court under section 239 of the 1997 Act.

Appellant's submissions
[9] Mr Sutherland submitted that the obligation to restore in Condition 11 as it stood was a requirement of the grant of the 1991 planning permission. The consequence of that was that the planning authority could not prevent restoration under that condition. Thus, infilling with soil was part and parcel of the earlier grant of planning permission in the 1991 permission. No further approval for that exercise was required from the planning authority. In support of that approach to conditions, Mr Sutherland referred me to the case of UK Waste Management Limited v The Secretary of State for the Environment, Transport and the Regions (Unreported) 21 September 1999 (CO 1007/99). This was a judgment of His Honour Judge Rich, QC, sitting as an additional judge of the Queen's Bench Division. The Secretary of State's Inspector had dismissed an appeal upon the failure of Lancashire County Council to determine what was described in the Notice of Motion as an application for approval of a scheme under a condition attached to a permission for the development of certain land. At page 10 Judge Rich said:

"although I would put the obligation to restore not as a permission, but as a requirement of the permission for the working of minerals, Mr Elvin accepted on behalf of the Secretary of State and that the Local Planning Authority could not refuse approval of the method of restoration in order to prevent restoration altogether."

Later, he went on to say:

"If approval could not be refused for the purpose of preventing restoration, approval would have to be given to some fill."

[10] Mr Sutherland drew support from the 2002 decision in which the Reporter concluded that the excavation of silt could reasonably be taken to be an incidental part of the infilling operation sanctioned by Condition 11. That Reporter had recognised the validity of Condition 11. The Reporter in the 2003 decision had failed properly to have regard to the 2002 decision and had reached a decision which no reasonable Reporter could have reached.

[11] Under reference to cases dealing with the equivalent English provision, section 73 of the Town and Country Planning Act 1990, Mr Sutherland submitted that certain statements made by the Reporter had the effect of rewriting the original grant of planning permission. The Reporter's suggestion that Pond No 1 might not be infilled would be something outwith the relevant considerations of section 42. The planning authority could not go back on the original planning permission and conditions which were part and parcel of that permission. It could not do anything which would be a material departure from the earlier position (Pye v The Secretary of State for the Environment [1991] PLCR 28 at p. 44E to 45F). Further, it could not under section 42 rewrite the permission altogether (R. v Coventry City Council [2001] PLCR 113).

[12] Mr Sutherland went on to make a detailed examination of the decision by the Reporter in the 2003 decision. His principle criticism of paragraph 23 related to the comments of the Reporter as to the scale of the exercise. The question of scale was entirely irrelevant to the issue of whether the application was properly an application for variation under section 42. The question of the scale of the exercise was something that was not before the Reporter in terms of the issues which he had to determine and amounted to a misdirection. In any event, there was no basis for the Reporter's supposition that the exercise of infilling was of such a scale that it could not be considered as having been within the contemplation of the original planning permission. When the planning authority granted permission in 1991 they knew what they were granting and it was logical that, in the event of the pond no longer being used, infilling would be required. Condition 10, which related to pond 2, expressly referred to the importation of material. In granting these conditions it could not have escaped the planning authority's mind that if they permitted a certain volume to be taken off, they must have assumed that the same volume required to be brought back.

[13] In paragraph 24 the Reporter had purported to set out the test which the planning authority should apply in deciding whether to accept the application for determination. However, he immediately referred to the need for a fresh application, having regard to the material involved and his view as to that material. In this way he had misdirected himself and had taken a view on the merits of the application. He had not asked the right question. He ought to have asked the question as to whether what was proposed was a fundamentally different proposal from what had been envisaged in the original grant. Had he done that he would have realised that a change in material would fall within the scope of section 42. There was no material difference in the process. Accordingly, the Reporter had prejudged the issue on the merits.

[14] Again, in paragraph 25, the Reporter had confused a decision on the merits with the question as to whether the matter fell within the scope of section 42. He was also effectively suggesting that Condition 11 should be ignored. He had suggested courses of action which would involve not complying with Condition 11. The land was purchased with a planning permission and the appellant was entitled to implement it as it was. The Reporter was re-writing the existing planning permission. He was taking irrelevant considerations into account.

[15] In paragraph 26 the Reporter had become confused. He had ignored the fact that there was already planning permission for infill. He had confused the obligation to restore the land under Condition 11 and the fact that the appellant had in mind a further use for the ground, namely an equestrian centre which would require to be the subject of a separate planning application.

[16] Mr Sutherland submitted that in paragraph 27 the Reporter had misdirected himself by taking into account irrelevant material. The planning authority itself had not taken the view that the application under section 42 contained a deficient description. With respect to the last sentence in paragraph 28, Mr Sutherland said that the conclusion resulted from a misdirection. The application should have been treated as a valid application under section 42. Paragraph 29 amounted to a series of speculations. It did not relate to the issues which were before the Reporter.

The respondents' submissions
[17] Mr Mure, who appeared on behalf of the respondents, submitted that the question for the Reporter was whether the application was valid, standing the proposals made in it and the fee accompanying it. At paragraph 22 the Reporter concluded that the question of the validity of the appeal application had to be settled before attention could be paid to the planning merits of the proposal.

[18] Mr Mure submitted that applications for variation of a condition might fall within a spectrum of possible cases. It was a matter for the discretion of the planning authority and the Reporter to consider how to characterise the application. Such a decision would be reviewable on the basis of Wednesbury unreasonableness. Mr Mure submitted that planning authorities had to take account of considerations such as purpose, scale and intention, and form a judgement as to the nature of the development proposed and the appropriate fee. He referred to West Bowers v Essex County Council 1985 50 P & CR 368 (CA).

[19] He submitted that a condition could not be imposed if it altered the extent or nature of the development permitted. He referred to Cadogan v Secretary of State for the Environment and others 1992 65 P & CR 410 (CA) at pages 412, 413 and 415. Mr Mure submitted that an application required to contain a description which was transparent about what it was that the application intended to do. He referred to Cumming v Secretary of State for Scotland 1992 SC 463 at pages 464, 472 and 474. The appellant was really looking to have a commercial waste operation. That sort of intention was not to be found in the application which the appellant had made. The proposal in the application of 2002 did not fairly give notice of the nature and extent of the development that the appellant had in mind. The true nature of the proposals plainly fell outwith the nature and extent of the development permitted by the 1991 permission.

[20] Mr Mure submitted that, frequently, conditions may be imposed in a planning permission that may require later approval, consent or planning permission from the local authority or others. There was an example of this in the 1991 planning permission itself. Condition 10 with respect to Pond No. 2 refers to a further application to be submitted. It is therefore perfectly valid for that sort of condition to be imposed. The landowner can comply with such a condition by applying for planning permission for the development then intended. If the planning authority refused unreasonably to grant the application for site restoration, any enforcement procedure would be doomed to failure.

[21] The intention of the application was to infill Pond 1 with imported inert waste and the extent of the works related to a pond 1.44 hectares with a typical depth of 4 metres. This would involve the importation of 60,000 cubic metres of waste material. It was plain that what was contemplated was a major waste disposal operation. Nothing of this nature was mentioned or envisaged in the application in 1991 which contained the planning condition sought to be varied.

[22] The application in 1991 was for a material change of use. In March 2002 the planning authority was faced with a proposal and had to form a view as to what the proper characterisation of the application was. It was within their discretion to treat the application as being an application for planning permission for a development of the type suggested in the letter dated 26 March 2002 (Production 7/3). The appellant's position with respect to variation was a fig leaf for the real intention. The appellant was hoping to use the condition as varied as a right to import waste material. Given the observations in Cumming it was reasonable for the planning authority to take the view that it did. A further reason why the exercise of discretion required to be made would be a desire to ensure that the public were properly informed and that the process had regard to the requirements for the disposal of waste.

[23] The question then arose as to what was the appropriate fee. A different fee became payable only as a consequence of the planning authority characterising the proposal as one for a material development. In terms of Article 12(3) of the 1992 Order it is provided that unless the application was accompanied by the required fee it would not be entertained. I did not understand Mr Sutherland to dispute that this was the case.

[24] With respect to the alleged departures from the views of the Reporter in the 2002 decision by the present Reporter, Mr Mure referred to certain aspects of the 2002 decision letter (Production 6/2). The Reporter in the 2003 decision noted at paragraph 31 that the previous Reporter's consideration concerned matters distinct from those crucial in the present case. Thus the second Reporter did not overturn the first Reporter, nor were the first Reporter's views binding on the second Reporter. They were dealing with different issues.

[25] Mr Mure submitted that whether or not the planning authority were correct about using soil from the site only, it was plain that inert waste referred to in the appellant's application under section 42 would be imported. The importation of material was a new factor and a new development not anticipated by the application of 1991.

[26] In referring in paragraph 23 to pond 2 the Reporter was simply making the point that given the concern in 1991 of planning permission to regulate excavation and infill for a non-pond area and to require the infilling of Pond 2 by reference to the 1986 permission, it would be odd if Condition 11 could be seen as authorising major importation. However, this observation was not material to the Reporter's final decision. It was an observation in passing. With respect to the criticism about further planning permission for deposit of materials being required, it was proper for the planning authority to impose conditions that may require further consents in due course. The reference to issues such as local amenity and traffic was simply made in passing .

[27] In response to the submission by Mr Sutherland that at paragraphs 24 and 25 the Reporter was taking the merits into account, Mr Mure pointed out that paragraphs 13-31 are headed "Validity of Application" and there was no doubt that the Reporter was considering throughout this section whether the application had been valid. The question of characterisation and whether what was now being proposed was something materially different from what was contained in the 1991 planning permission was precisely the question upon which the Reporter required to adjudicate.

[28] With respect to paragraph 25 it was open to the Reporter and the planning authority to characterise what was proposed. To do so did not amount to looking at the merits. Although paragraph 27 contained a subsidiary observation this did not undermine the observations about the characterisation of the development. These were obiter remarks. The first words of paragraph 29 make it clear that, even if the reasoning of the remainder of this paragraph could be criticised, there were ample reasons to conclude that the application was invalid.

[29] Reading the letter as a whole, the Reporter had clearly decided that what the appellant had in mind was a new development outwith the 1991 planning permission and the planning authority were right to characterise it in the way that they did.

Discussion and decision
[30] In my opinion it is necessary in approaching this appeal to have regard to the background against which the application for variation of Condition 11 was made. It is clear that the question of what the appellant had in mind to do with Pond 1 after the business closed was not one that came out of the blue with the application under section 42 of the 1997 Act. It had been the subject of lengthy correspondence between the appellant and the planning authority, and when the appellant began the operation to comply with Condition 11, the planning authority issued an enforcement notice. It is clear from the 2002 decision letter that the planning authority were well aware of the appellant's desire to use imported waste to infill Pond 1.

[31] The scale of such an infilling exercise was significant. The Reporter in the 2003 decision calculated that nearly 60,000 cubic metres of waste would be required. In their representations neighbours submitted that, taking a figure of 56,000 cubic metres, this would involve one lorry every ten minutes for eight hours a day, Monday to Friday, for a period of seven months. What was contemplated was on any view a major waste disposal operation. As the Reporter pointed out in paragraph 23 a development of such a scale and nature would in normal course require a planning application with concomitant technical consultation and opportunity for comment by the local community. It was against that background that the planning authority received the application under section 42.

[32] I do not derive much assistance from the Waste Management case. That case proceeded on a concession on behalf of the Secretary of State that in the circumstances of that case the local planning authority could not refuse approval of the method of restoration in order to prevent restoration altogether.

[33] In my opinion in the circumstances of the present case in deciding how to characterise the application under section 42 the planning authority were entitled to exercise discretion. They were entitled to have regard to the purpose and scale of what was proposed, and come to a view as to the nature of the development proposed. In West Bowers v Essex County Council 1985 50 P & CR 368 (CA) a partnership of farmers wished to construct a reservoir for the purpose of irrigating their crops. It could not be dug without extracting a large quantity of sand and gravel which was to be removed from the site and sold. The planning authority directed that the general permission granted by article 3 of the Town and Country Planning General Development Order 1977 for the carrying out on agricultural land of engineering operations requisite for the use of land for the purposes of agriculture should not apply to the construction of the proposed reservoir. It thus became necessary for the appellants to apply for planning permission to construct the reservoir and the local planning authority maintained that they would be unable to entertain the application until it had been advertised and the relevant fee paid. The question was, therefore, whether the construction of the reservoir would fall within the classes of development to which Section 26 of the Town and Country Planning Act 1971 applied. The court held that whether a single process amounted for planning purposes to two activities was a question of fact and degree. If it involves two activities, each of substance, so that one was not merely ancillary to the other, both required planning permission. The decision of the planning authority was one which was reviewable on Wednesbury principles. In making their decision they were entitled to take into account not only the purpose but also the scale and effect of what would otherwise be an ancillary operation. At page 378 Sir John Donaldson M.R. said this:

"Purpose is undoubtedly a factor to be taken into account. Scale, however, is also the relevant as is what happens to the extracted materials."

Mr Sutherland sought to distinguish West Bowers from the present case on the basis that the application to dig out the reservoir was a new planning application. I am not persuaded that that difference prevents me from drawing support from the principles enunciated in West Bowers.

[34] In my opinion the submission of Mr Mure, under reference to Cumming, that the description of the development in a planning application should be transparent as to the real purpose of the application is well founded. Further, in Cadogan at page 413 Glidewell LJ said:

"It is established law that a condition on a planning permission will not be valid if it alters the extent or indeed the nature of the development permitted."

In my opinion Mr Mure was well founded in his submission that the proposal in the application of 2002 did not fairly give notice of the nature and extent of the development that the applicant had in mind.

[35] The decision letter of the Reporter is not to be construed as a statute and should be read as a whole (Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1WLR 153; see the speech of Lord Bridge of Harwich at page 165F).

[36] I do not accept the proposition advanced by Mr Sutherland that the 2003 decision overturns, or fails to take proper account of, the 2002 decision by a different Reporter. I note that at paragraph 37 of the 2002 decision letter (Production 6/2) the Reporter pointed out that the question as to whether the proposal to vary the 1991 permission to allow infill with inert materials required a fresh application was not relevant to that appeal. Again, at paragraph 42, under reference to Condition 11, that Reporter in 2002 noted that while the condition limited the infill material to soils only, it did not restrict the soil to soils from the appeal site. He went on to say that that issue, which was controversial, was not directly relevant to the appeal since at that stage the appellant had not commenced infilling. The Reporter in the 2003 decision noted at paragraph 31 that the previous Reporter's consideration concerned matters distinct from those crucial in the present case. Thus, I accept the submissions of Mr Mure that the second Reporter did not overturn the first Reporter. It is correct to say that they were dealing with different issues and that the Reporter in 2003 was not bound by the Reporter in 2002.

[37] In paragraph 22 the Reporter made it clear that he recognised that the question of the validity of the appeal application had to be settled before attention could be paid to the planning merits of the proposal. Thus, his approach to the question which he required to address was correct. In my opinion he was correct in paragraph 23 to identify the problem in the appeal as being that it depended on "the fallacious idea that a condition of a planning permission can in effect convey planning permission for substantial development not within the scope of the original application." In the light of the view that I have reached that the question of scale is a relevant consideration in the process of characterising the application, in my opinion the Reporter was entitled to have regard, as he did in paragraph 23, to the question of scale. I accept that the reference in paragraph 23 to Pond 2 is not material to the Reporter's final decision.

[38] I do not accept Mr Sutherland's criticism that in paragraphs 24 and 25 the Reporter has misdirected himself by addressing the merits. Once it is accepted that it was open to the planning authority to exercise discretion in deciding whether to accept the application as being one of variation of condition, it was inevitable that the planning authority and Reporter would require to have some regard to the nature and scale of what was proposed. In order properly to come to a decision as to how to treat the application under section 42, it was necessary for the planning authority to characterise the application. Accordingly, it was necessary for the Reporter to have regard to these considerations also. It seems to me that the observations of the Reporter in paragraph 27 were not necessary for his decision and were, as Mr Mure suggested, obiter. Further, while the views which he expressed in paragraph 29 are certainly open to criticism, the opening words of the paragraph make it clear that the principal reasons upon which he had founded his decision were those which he had already stated.

[39] Accordingly, in my opinion, the attack mounted by the appellant on the 2003 decision is not well founded and I shall refuse the appeal. I shall reserve the question of expenses meantime.